APPENDIX, NO. II.
IN page 75 notice is taken of the difficulties under which Congress
laboured during the confederation, in respect to enforcing the
observance of treaties, and the letter from congress to the several
states prepared by Mr. Jay is referred to.
As an historical document valuable in every respect, we here insert it:
--
"Friday, April 13, 1787.
"The secretary for foreign affairs, having in pursuance of an order of
congress, reported the draught of a letter to the states, to accompany
the resolutions passed the 21st day of March, 1787: the same was taken
into consideration, and unanimously agreed to as follows:
"SIR -- Our secretary for foreign affairs has transmitted to you copies
of, a letter to him, from our minister at the court of London, of the
4th day of March, 1786, and of the papers mentioned to have been
enclosed with it.
"We have deliberately and dispassionately examined and considered the
several facts and matters urged by Britain, as infractions of the treaty
of peace on the part of America, and we regret that in some of the
states, too little attention appears to have been paid to the public
faith pledged by that treaty.
"Not only the obvious dictates of religion, morality and national
honour, but also the first principles of good policy, demand a candid
and punctual compliance with engagements constitutionally and fairly
made.
"Our national Constitution having committed to us the management of the
national concerns with foreign states and powers, it is our duty to take
care that all the rights which they ought to enjoy within our
jurisdiction by the laws of nations and the faith of treaties, remain
inviolate. And it is also our duty to provide that the essential
interests and peace of the whole confederacy, be not impaired or
endangered by deviations from the line of public faith, into which any
of its members may from whatever cause be unadvisedly drawn.
"Let it be remembered, that the thirteen independent sovereign states
have, by express delegation of power, formed and vested in us a general
though limited sovereignty, for the general and national purposes
specified in the confederation. In this sovereignty they cannot
severally participate, (except by their delegates,) nor with it have
concurrent jurisdiction; for the ninth article of the confederation most
expressly conveys to us the sole and exclusive right and power of
determining on war and peace, and of entering into treaties and
alliances, &c.
"When therefore a treaty is constitutionally made, ratified and
published by us, it immediately becomes binding on the whole nation, and
superadded to the laws of the land, without the intervention of state
legislatures. Treaties derive their obligation from being compacts
between the sovereign of this and the sovereign of another nation;
whereas laws or statutes derive their force from being the acts of a
legislature competent to the passing of them. Hence it is clear that
treaties must be implicitly received and observed by every member of the
nation; for as state legislatures are not competent to the making of
such compacts or treaties, so neither are they competent in that
capacity, authoritatively to decide on, or ascertain the construction
and sense of them. When doubts arise respecting the construction of
state laws, it is not unusual nor improper for state legislatures, by
explanatory or declaratory acts, to remove those doubts: but, the case
between laws and compacts or treaties is in this widely different; for
when doubts arise respecting the sense and meaning of a treaty, they are
so far from being cognizable by a state legislature, that the United
States in congress assembled, have no authority to settle and determine
them: for as the legislature only, which constitutionally passes a law,
has power to revise and amend it, so the sovereigns only, who are
parties to the treaty, have power by mutual consent and posterior
articles, to correct or explain it.
"In cases between individuals, all doubts respecting the meaning of a
treaty, like all doubts respecting the meaning of a law, are in the
first instance mere judicial questions, and are to be heard and decided
in the courts of justice having cognizance of the causes in which they
arise, and whose duty it is to determine them according to the rules and
maxims established by the laws of nations for the interpretation of
treaties. From these principles it follows of necessary consequence,
that no individual state has a right by legislative acts to decide and
point out the sense in which their particular citizens and courts shall
understand this or that article of a treaty.
"It is evident that a contrary doctrine would not only militate against
the common and established maxims and ideas relative to this subject,
but would prove no less inconvenient in practice than it is irrational
in theory; for in that case the same article of the same treaty might by
law be made to mean one thing in New Hampshire, another thing in New
York, and neither the one nor the other of them in Georgia.
"How far such legislative acts would be valid and obligatory even within
the limits of the state passing them, is a question which we hope never
to have occasion to discuss. Certain, however it is, that such acts
cannot bind either of the contracting sovereigns, and consequently
cannot be obligatory on their respective nations.
"But if treaties, and every article in them be, (as they are, and ought
to be,) binding on the whole nation, if individual states have no right
to accept some articles and reject others, and if the impropriety of
state acts to interpret and decide the sense and construction of them,
be apparent, still more manifest must be the impropriety of state acts
to control, delay or modify the operation and execution of these
national compacts.
"When it is considered that the several states assembled by their
delegates in congress, have express power to form treaties, surely the
treaties so formed are not afterwards to be subject to such alterations
as this or that state legislature may think expedient to make, and that
too without the consent of either of the parties to it; that is in the
present case without the consent of all the United States, who
collectively are parties to this treaty on the one side, and his
Britannic majesty on the other. Were the legislatures to possess and to
exercise such power, we should soon be involved as a nation, in anarchy
and confusion at home, and in disputes which would probably terminate in
hostilities and war, with the nations with whom we may have formed
treaties. Instances would then be frequent, of treaties fully executed
in one state, and only partly executed in another; and of the same
article being executed in one manner in one state, and in a different
manner, or not at all, in another state. History furnishes no precedent
of such liberties taken with treaties under form of law in any nation.
"Contracts between nations, like contracts between individuals, should
be faithfully executed, even though the sword in the one case, and the
law in the other, did not compel it. Honest nations, like honest men,
require no constraint to do justice; and though impunity and the
necessity of affairs, may sometimes afford temptations to pare down
contracts to the measure of convenience, yet it is never done but at the
expense of that esteem, and confidence and credit, which are of
infinitely more worth, than all the momentary advantages which such
expedients can extort.
"But although contracting nations cannot, like individuals, avail
themselves of courts of justice to compel performance of contracts; yet
an appeal to heaven and to arms is always in their power, and often in
their inclination.
"But it is their duty to take care that they never lead their people to
make and support such appeals, unless the sincerity and propriety of
their conduct affords them good reason to rely with confidence on the
justice and protection of heaven.
"Thus much we think it useful to observe, in order to explain the
principles on which we have unanimously come to the following
resolution, viz.
"'Resolved, That the legislatures of the several states cannot of right
pass any act or acts for interpreting, explaining, or construing a
national treaty, or any part or clause of it; nor for restraining,
limiting, or in any manner impeding, retarding or counteracting the
operation and execution of the same; for that on being constitutionally
made, ratified and published, they become in virtue of the
confederation, part of the law of the land, and are not only independent
of the will and power of such legislatures, but also binding and
obligatory on them.'
"As the treaty of peace, so far as it respects the matters and things
provided for in it, is a law to the United States which cannot by all or
any of them be altered or changed, all state acts establishing
provisions relative to the same objects which are incompatible with it,
must in every point of view be improper. Such acts do nevertheless
exist; but we do not think it necessary either to enumerate them
particularly, or to make them severally the subjects of discussion. It
appears to us sufficient to observe and insist, that the treaty ought to
have free course in its operation and execution, and that all obstacles
interposed by state acts be removed. We mean to act with the most
scrupulous regard to justice and candour towards Great Britain, and with
an equal degree of delicacy, moderation and decision towards the states
who have given occasion to these discussions.
"For these reasons we have in general terms,
"'Resolved, That all such acts or parts of acts as may be now existing
in any of the states, repugnant to the treaty of peace, ought to be
forthwith repealed; as well to prevent their continuing to be regarded
as violations of that treaty, as to avoid the disagreeable necessity
there might otherwise be of raising and discussing questions touching
their validity and obligation.'
"Although this resolution applies strictly only to such of the states as
have passed the exceptionable acts alluded to, yet to obviate all future
disputes and questions, as well as to remove those which now exist, we
think it best that every state without exception should pass a law on
the subject. We have therefore,
"'Resolved, That it be recommended to the several states to make such
repeal, rather by describing than reciting the said acts; and for that
purpose to pass an act declaring in general terms that all such acts,
and parts of acts repugnant to the treaty of peace between the United
States and his Britannic majesty, or any article thereof, shall be, and
thereby are repealed; and that the courts of law and equity in all
causes and questions cognizable by them respectively, and arising from
or touching the said treaty, shall decide and adjudge according to the
true intent and meaning of the same: any thing in the said acts, or
parts of acts, to the contrary thereof in any wise notwithstanding.'
"Such laws would answer every purpose, and be easily formed. The more
they were of the like tenor throughout the states the better. They might
each recite that,
"Whereas certain laws or statutes made and passed in some of the United
States, are regarded and complained of as repugnant to the treaty of
peace with Great Britain, by reason whereof not only the good faith of
the United States pledged by that treaty, has been drawn into question,
but their essential interests under that treaty greatly affected. And
whereas justice to Great Britain, as well as regard to the honour and
interests of the United States, require that the said treaty be
faithfully executed, and that all obstacles thereto, and particularly
such as do or may be construed to proceed from the laws of this state,
be effectually removed. Therefore,
"Be it enacted by ___________________ and it is hereby enacted by the
authority of the same, that such of the acts or parts of acts of the
legislature of this state, as are repugnant to the treaty of peace
between the United States and his Britannic majesty, or any article
thereof, shall be, and hereby are repealed. And further, that the courts
of law and equity within this state be, and they hereby are directed and
required in, all causes and questions cognizable by them respectively,
and arising from or touching the said treaty, to decide and adjudge
according to the tenor, true intent and meaning of the same, any thing
in the said acts or parts of acts, to the contrary thereof in any wise
notwithstanding.
"Such a general law would, we think, be preferable to one that should
minutely enumerate the acts and clauses intended to be repeated: because
omissions might accidentally be made in the enumeration, or questions
might arise, and perhaps not be satisfactorily determined, respecting
particular acts or clauses, about which, contrary opinions may be
entertained. By repealing in general terms all acts and clauses
repugnant to the treaty, the business will be turned over to its proper
department, viz. the judicial; and the courts of law will find no
difficulty in deciding whether any particular act or clause, is, or is
not contrary to the treaty. Besides, when it is considered that the
judges in general, are men of character and learning, and feel as well
as know the obligations of office, and the value of reputation, there is
no reason to doubt that their conduct and judgments relative to these,
as well as other judicial matters, will be wise and upright.
"Be pleased, sir, to lay this letter before the legislature of your
state, without delay. We flatter ourselves they will concur with us in
opinion, that candour and justice are as necessary to true policy as
they are to sound morality, and that the most honourable way of
delivering ourselves from the embarrassment of mistakes, is fairly to
correct them. It certainly is time that all doubts respecting the public
faith be removed, and that all questions and differences between us and
Great Britain, be amicably and finally settled. The states are informed
of the reasons why his Britannic majesty still continues to occupy the
frontier posts, which by the treaty he agreed to evacuate; and we have
the strongest assurances that an exact compliance with the treaty on our
part, shall be followed by a punctual performance of it on the part of
Great Britain.
"It is important that the several legislatures should, as soon as
possible, take these matters into consideration; and we request the
favour of you to transmit to us an authenticated copy of such acts and
proceedings of the legislature of your state, as may take place on the
subject and in pursuance of this letter.
"By order of congress,
(Signed) "ARTHUR ST. CLAIR, President."
No one can wish to see the country again reduced to such difficulties
and disgrace. Still less that by a total dissolution of the Union, we
should be left without even such a defective confederation as this was.
But we cannot leave the subject without an additional remark.
As soon as the Constitution was adopted, all legislative measures for
the purpose of enforcing existing treaties, either on the part of the
United States or the states, became at once unnecessary. The institution
of the judicial power was itself adequate to the desired effect. The
partial views and local interests which. might have influenced state
legislatures, or the high tone which might be jealously imputed to the
general legislature, were equally avoided. The people, by the adoption
of the Constitution, had themselves legislated on the subject, and the
judicial principle, in regular and dignified procedure, carried their
legislation into effect.